Citation Nr: 9833733
Decision Date: 11/16/98 Archive Date: 11/24/98
DOCKET NO. 97-29 378 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Buffalo, New York
THE ISSUE
Whether new and material evidence has been submitted to
reopen the claim of service connection for residuals of a
back injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Julie L. Salas, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1954 to August
1956.
This matter comes to the Board of Veterans’ Appeals (Board)
on appeal of rating decisions of the RO.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative contend that recently
submitted evidence is new and material for the purpose of
establishing that the veteran suffers from the residuals of a
back injury incurred in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
been presented for the purpose of reopening the claim of
service connection.
FINDINGS OF FACT
1. In a January 1957 rating decision, the RO denied the
veteran’s original claim of service connection for a back
condition; that decision was not appealed in a timely manner.
2. Material evidence which would raise a reasonable
possibility of changing the outcome has been associated with
the claims folder since the January 1957 decision.
CONCLUSION OF LAW
New and material evidence has been submitted for the purposes
of reopening the veteran’s claim of service connection for
the residuals of a back injury. 38 U.S.C.A. §§ 1110, 1131,
5108, 7105 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.104(a),
3.156(a), 20.1103 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
When a claim is disallowed by the RO, appellate review is
initiated by the filing of a Notice of Disagreement within
one year from the date of mailing of notice of the result of
the initial disallowance. 38 U.S.C.A. § 7105(a), (b). If a
Notice of Disagreement is filed within the one-year period,
the RO shall issue a Statement of the Case. 38 U.S.C.A.
§ 7105(d). The veteran is provided a period of 60 days (or
the remainder of the one-year period from the date of mailing
of notice of the determination being appealed) to file the
formal appeal. 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.302(b).
In the absence of a perfected appeal, the RO’s decision
becomes final, and the claim will not thereafter be reopened
or allowed, except as otherwise provided. 38 U.S.C.A.
§ 7105; 38 C.F.R. § 20.1103.
If new and material evidence is presented or secured with
respect to a claim which has been disallowed, VA shall reopen
the claim and review the former disposition of the claim.
38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145
(1991). New and material evidence means evidence not
previously submitted to agency decision makers, which bears
directly and substantially upon the specific matter under
consideration, which is neither cumulative nor redundant, and
which by itself or in connection with the evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R.
§ 3.156(a). To justify the reopening on the basis of new and
material evidence, there must be a reasonable possibility
that the new evidence, when viewed in the context of all the
evidence, both new and old, would change the outcome. Colvin
v. Derwinski, 1 Vet. App. 171 (1991).
The United States Court of Veterans Appeals summarized the
analysis in determining whether evidence is new and material
in Evans v. Brown, 9 Vet. App. 273 (1996). VA must first
determine whether the newly presented evidence is “new,”
that is, not of record at the time of the last final
disallowance of the claim and not merely cumulative of other
evidence that was then of record. If new, the evidence must
also be “material,” that is probative of the issue at hand.
Finally, if the evidence is new and probative, then VA must
determine whether, in light of all the evidence of record,
there is a reasonable possibility that the outcome of the
claim on the merits would be changed.
The evidence of record at the time of the RO’s January 1957
decision included the veteran’s service medical records,
reports from VA examination and an x-ray study conducted in
November 1956 and the application for compensation. The
service medical records indicated that the veteran had
initially hurt his lower back in June 1956 while lifting wall
lockers. The veteran presented to a VA orthopedic
examination in November 1956 with complaints of intermittent
pain in the dorso-lumbar region after lifting heavy objects
or splitting wood which would usually resolve after a few
days. Examination revealed mild roundback deformity with
normal range of motion in all segments of the spine. Changes
observed through x-ray studies were interpreted as congenital
or developmental in nature.
Based on this evidence, in January 1957, the RO denied the
veteran’s original claim of service connection for back
strain. The veteran was notified of the decision and his
appellate rights but failed to file a timely appeal. Thus,
the decision became final.
The evidence received since the RO’s January 1957 rating
decision includes private and VA medical evidence and
statements of the veteran. Of particular significance are
two statements from Lorraine Seddon, M.D., submitted in
support of the veteran’s claim. The first statement, dated
in June 1994, related the veteran’s history of back pain as
originating in 1956. Dr. Seddon went on to say that the
veteran currently had osteoarthritis of the spine and that
“[p]revious injury of a joint (or the spine) [could]
predispose to osteoarthritis in that area.” The second
statement, dated in September 1995, further explained that
“[a]lthough it [was] impossible to state that such an injury
[was] the only possible cause of the arthritis of the spine,
a previous injury to that area certainly would predispose to
the development of osteoarthritis.” As the veteran knew of
no other predisposing injuries or activities, Dr. Seddon
opined that “it seem[ed] likely that this injury predisposed
the patient to development of arthritis in the area of injury
in his back.”
These two statements from Dr. Seddon, constitute new and
material evidence in the Board’s opinion. New and material
evidence having been submitted, the claim of service
connection for the residuals of a back injury is reopened.
ORDER
As new and material evidence to reopen the claim for service
connection for the residuals of a back injury has been
submitted, the appeal is granted subject to the action as
discussed hereinbelow.
REMAND
In light of the action taken hereinabove, the Board notes
that de novo review of the veteran's claim of service
connection for the residuals of a back injury by the RO is
required. All indicated development should be undertaken in
this regard.
In light of the foregoing, the Board is REMANDING this case
for the following actions:
1. The RO should take appropriate steps
to contact the veteran and his
representative in order to request the
names, addresses, and approximate dates
of treatment for all VA and non-VA health
care providers who have treated him for
his back condition since service. After
securing the necessary releases, the RO
should attempt to obtain copies of
pertinent treatment records identified by
the veteran in response to this request,
which have not been previously secured
and associate them with the claims
folder.
2. The RO should schedule the veteran
for a comprehensive VA orthopedic
examination to determine the current
nature and likely etiology of the claimed
back condition. The claims folder must
be made available to and reviewed by the
examiner, and the examiner should report
whether the claims folder was indeed
available and reviewed. Based on his/her
review of the case, the examiner should
provide an opinion as to the likelihood
that any current back disability is due
to disease or injury incurred in or
aggravated by service, as claimed by Dr.
Seddon. A complete rationale for each
opinion expressed must be provided. The
report of the examination should be
associated with the veteran’s claims
folder.
3. After undertaking any additional
development deemed appropriate, the RO
should conduct a de novo review of the
veteran’s claim of entitlement to service
connection for the residuals of a back
injury. Due consideration should be
given to all pertinent laws and
regulations. If the benefit sought on
appeal is not granted, the veteran and
his representative should be issued a
Supplemental Statement of the Case, which
should include all pertinent laws and
regulations, and be afforded a reasonable
opportunity to reply thereto.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. In
taking this action, the Board implies no conclusion as to any
ultimate outcome warranted. No action is required of the
veteran until he is otherwise notified by the RO.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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